The executor witness

Reader Sharon Crowley came across an abstract of an ancestor’s 1875 will, filed in Northern Ireland, and couldn’t quite figure out what it meant.

The entry, at the website of the Public Record Office of Northern Ireland (PRONI), read: “The Will of Oswald Stewart late of Trummon County Donegal Farmer deceased who died 22 March 1875 at same place was proved at Londonderry by the oath of Andrew Farrell of Ballybulgan (Bridgetown) in said County Farmer one of the Executors.” 1

What exactly, Sharon wondered, was Andrew Farrell’s role here?

Good question! Let’s start with what the record is, before we get to exactly what Andrew was doing.

First off, the repository: “The Public Record Office of Northern Ireland (PRONI) is the official archive for Northern Ireland.”2 And its website offers a wonderful and concise history of probate in Northern Ireland:

Before 1858 the Established Church (the Church of Ireland)… was responsible for granting probate and letters of administration. … (I)n 1857 … probate matters were transferred from the ecclesiastical courts to the civil courts. The Prerogative Court and the consistorial courts were replaced by the Principal Registry in Dublin and a number of District Registries of the Probate Court (before 1877) and of the High Court (after 1877). …

The District Registries covering what is now Northern Ireland were those for Armagh, Belfast and Londonderry. …

Unfortunately the original wills of the Principal Registry up to 1904 and of the District Registries up to 1899 were lost in 1922 when the Public Record Office of Ireland in Dublin was destroyed. However, the copies of wills that were made by the District Registries survived as they had not been transferred to the Public Record Office in Dublin. These copies of wills were written into large volumes – those for the District Registries of Armagh, Belfast and Londonderry are held in the Public Record Office of Northern Ireland. They are currently being digitised. …

From 1858 when wills began to be proved in the High Court of Justice summaries of every grant of probate and letters of administration were kept in printed volumes known as will calendars.
An alphabetical list of names of the deceased were produced for each year recording their address and occupation, often the place of death, the date of death and the date of the grant of probate or letters of administration, the District Registry where the will was proved, the value of the estate, and the names of the person or persons to whom probate or administration was granted and very often the relation of the latter to the deceased.3

So the abstract Sharon found is from the Will Calendar, and it sets out really only the bare bones of what happened in this case.

Now about our friend Andrew. What makes the reference to him confusing is that we’re used to seeing people mentioned in a will playing one role — say, a witness to the will or being named as executor. What happened here was that Andrew was both.

Going beyond the abstract to the nicely digitized image of the will copy from the registry book tells us, in time order, what happened:

• On 8 March 1875, Oswald Stewart, a farmer in the town of Trummon, in County Donegal, made his will. He left everything to his wife Jane and named two men as co-executors of his estate: William Cassidy and Andrew Farrell, both of Ballybulgan.4

• Both Cassidy and Farrell served as witnesses to the will. That required all three men to be present at the same time in the same place. Cassidy and Farrell first watched Stewart making his mark on the will, then each watched as the other signed as a witness.

• On 22 March 1875, Stewart died.

• On 24 September 1875, probate of the will was granted. And before that could happen, one of the witnesses had to go into court in Londonderry and prove the will. That witness was Andrew Farrell.

Proving a will and granting probate are really one and the same thing. To prove in the context of a will means to “establish the genuineness and due execution of a paper, propounded to the proper court or officer, as the last will and testament of a deceased person.”5 And the word probate itself means:

The act or process of proving a will. The proof before an ordinary, surrogate, register, or other duly authorized person that a document produced before him for official recognition and registration, and alleged to be the last will and testament of a certain deceased person, is such in reality.6

So what Farrell did was tell the court in Londonderry what the circumstances were when the will was made, so the court could determine that the paper it was looking at was, in fact, Stewart’s will and that it was valid — that Stewart was of sound mind, that nobody unduly influenced him, and that sort of thing.

Sharon has a lot to go looking for here. She starts, of course, with looking for any other surviving records of the estate and the probate process. The will copy at PRONI says “For Probate see Probate Book No. 3, page 363.” If that survives, that’s number one on the want list. An estate inventory would be terrific. The will copy says Stewart’s assets were valued at £195 — somewhere around £14,300.00 in today’s money using the retail price index or £85,100.00 using average earnings7 — not a fortune by any means but not too shabby.

And then there’s the whole question of who Andrew Farrell was, and what he was to Oswald Stewart. And who William Cassidy was, and what he was to Oswald Stewart. And then what happened to Jane and…

3 Responses to The executor witness

More on the Disestablishment of the Irish Church and it’s legal implications. In addition to giving the probate courts over to the civil authorities, the church set up an administrative unit for its own finances called the RCB (Representative Church Body), a trust. (1) For some reason, the RCB was not allowed by law to take bequests of greater than 30 acres.

A well to do childless widower, Elliot Motherwell, married a distant connection of mine, the old maid parson’s daughter Clara Keane in 1904. After a long and happy marriage of three years, he died in 1907. He left life estates of various sizes to his widow Clara Keane Motherwell, his sister Orinda Hester Longford, a cousin, and a family retainer. That still left enough of a surplus to provide more income which apparently was the property of the estate. This surplus and the remnants of the various life estates went to the RCB after the deaths of the beneficiaries in trust for two his late father’s parishes, and his wife’s parish (her father John Keane was the rector.)

Apparently Irish law considers his nearest blood relative, Hester, as “Heiress-at-law” and next of kin. In that role, she claimed the administration of the estate (including receiving its income) from the RCB since they were not allowed to receive large bequests. The church(es) then sued her to retain the administration. The lead plaintiff was John Keane the parish rector and the nominal defendants were the beneficiaries including Clara Keane Motherwell. An instance of father suing beloved daughter.

The court sided with the church. It seemed a decision with the right outcome but with some pretty dodgey reasoning on the line of what is the definition of “is”. But what do I know. The opinion is very informative, but with obscure legalisms. I’m happy to send you a scanned pdf if you’d like.

Bob Kirk
(You’ve become a favorite blog. I learn something new each time. Even the darn law is interesting.)

I dumbly left out the primary issue of the case above; a term of the will: ‘ “After the death of these parties named in my will, and if my wife has no children of me,” he bequeathed all hisfee-simple property in C, and the farm of F., to the Church of Ireland Representative Body for the benefit of three parishes, …’

The judge’s decision, I paraphrase, was that if the above is read literally, the sister wins immediate control of the estate and its profits, and the church must wait till everyone dies to get what’s left. However, if read “Distributively”, whatever that means, that since the wife Clara had no children the clock stops and the church gets control of the estate now. After much justification he sided with the distributive reading. He then quickly disposed of the issue of the RCB not being allowed to receive large bequests by saying that RCB wasn’t really receiving, but acting as trustee for the 3 parishes.

The church won, though it’s interesting that the estate wasn’t finally settled till the 1930s.